01 Jun JUDICIAL REVIEW IN INDIA

1. Introduction

 Judicial Review is the power of the Supreme Court and High Courts to examine the constitutionality of legislative enactments and executive orders. If found to be in violation of the Constitution, they can be declared void. It is widely regarded as the cornerstone of the Indian constitutional framework and a guarantor of the rule of law.The concept draws its intellectual lineage from the American precedent set in Marbury v. Madison (1803), where Chief Justice John Marshall articulated that it is “emphatically the province and duty of the judicial department to say what the law is.” In India, however, judicial review has evolved far beyond its American origins to encompass a uniquely broad spectrum — protecting fundamental rights, enforcing constitutional morality, and preserving the basic structure of the Constitution itself.

2. Constitutional Basis of Judicial Review

2.1 Explicit Provisions

The Constitution of India does not use the expression ‘Judicial Review’ per se, yet several articles collectively vest this power in the judiciary:

● Article 13: Declares any law inconsistent with Part III (Fundamental Rights) to be void to the extent of inconsistency — the foundational provision.

● Article 32: Confers on the Supreme Court the power to issue writs for enforcement of Fundamental Rights; Dr. B.R. Ambedkar called it the ‘heart and soul’ of the Constitution.

● Article 226: Empowers High Courts to issue writs not only for Fundamental Rights but also for ‘any other purpose,’ giving them a wider remedial jurisdiction than the Supreme Court.

● Articles 131–136: Provide original, appellate, and special leave jurisdiction, enabling the Supreme Court to scrutinise subordinate judicial and quasi-judicial orders.

● Articles 245–246: Demarcate the legislative competence of Parliament and State Legislatures; courts review whether a legislature has exceeded its assigned field.

● Article 372: Preserves pre-constitutional laws but subjects them to review under Fundamental Rights.

2.2 Scope and Limitations

The scope of judicial review in India is regarded as wider than in the United States but narrower than in the United Kingdom. It extends to:

3. Evolution Through Landmark Judgments

The trajectory of judicial review in India can be mapped through five defining phases:

4. The Basic Structure Doctrine — Jewel in the Crown

The Basic Structure Doctrine is India’s most significant and original contribution to constitutional law globally. Enunciated by a 13-judge bench in Kesavananda Bharati (1973), it holds that while Parliament has the power to amend the Constitution under Article 368, it cannot alter or destroy its basic or essential features. This doctrine transformed judicial review into a guardian of constitutional identity itself.

4.1 Core Elements of Basic Structure

While no definitive exhaustive list exists, the Supreme Court has identified the following as elements of the basic structure:

● Supremacy of the Constitution

● Republican and democratic form of government

● Secular character of the Constitution

● Separation of Powers between the legislature, executive, and judiciary

● Federal character of the Constitution

● Judicial review itself (Minerva Mills, 1980)

● Rule of law and independence of the judiciary

● Harmony and balance between Fundamental Rights and Directive Principles

● Free and fair elections (Indira Nehru Gandhi v. Raj Narain, 1975)

● Limited power of Parliament to amend the Constitution

4.2 Global Influence

The Basic Structure Doctrine has inspired constitutions and courts worldwide. Bangladesh adopted a similar doctrine in Anwar Hossain Chowdhury v. Bangladesh (1989). Pakistan’s Supreme Court applied it in Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan. Even Germany’s Eternity Clause (Article 79(3) of the Basic Law) reflects a comparable philosophy.

5. Public Interest Litigation — Democratising Judicial Review

The 1980s witnessed a revolutionary expansion of judicial review through Public Interest Litigation (PIL), pioneered by Justices P.N. Bhagwati and V.R. Krishna Iyer. By relaxing the traditional locus standi requirement, the Supreme Court enabled any concerned citizen to approach it on behalf of those too poor, illiterate, or powerless to do so themselves.

5.1 Landmark PILs and Their Impact

6. Proportionality — The Modern Standard

Traditionally, Indian courts used the ‘manifest arbitrariness’ test (Article 14) and ‘reasonable restrictions’ test (Article 19) to review laws. The Privacy judgment (2017) and Modern Dental College v. State of M.P. (2016) formally introduced the doctrine of proportionality as a richer judicial review standard, borrowed from German and European constitutional law.

6.1 The Four-Pronged Proportionality Test

A state action limiting a fundamental right must satisfy all four prongs:

● Legitimate Goal — The objective must be constitutionally permissible.

● Rational Nexus — There must be a reasonable connection between the measure and the goal.

● Necessity — The restriction must be the least restrictive measure available.

● Proportionality stricto sensu — The benefit of the measure must not be outweighed by the harm to rights.

7. Challenges and Criticisms

Despite its salutary role, judicial review in India faces significant critiques:

● Judicial Overreach: Courts are accused of transgressing into policy domains — ‘judicial legislation’ — especially through PILs addressing governance, environment, and education policy.

● Accountability Deficit: Judges are unelected, yet their review of legislation passed by elected representatives raises counter-majoritarian concerns.

● Pendency and Delays: India’s courts face over 50 million pending cases, diluting the effectiveness of judicial review as a swift remedy.

● Inconsistency: Different benches applying different standards (reasonable restriction vs. proportionality) creates unpredictability.

● Executive Pushback: Proposals like NJAC (struck down, 2015) and debates over judicial appointments reflect ongoing institutional friction.

8. UPSC Examination Perspective

8.1 Frequently Asked Dimensions

8.2 Important Writs at a Glance

9. Conclusion

Judicial review is not merely a legal mechanism — it is the very sinew that holds together India’s constitutional democracy. By empowering courts to strike down arbitrary laws and executive overreach, it gives practical meaning to the supremacy of the Constitution. The Basic Structure Doctrine, in particular, represents an extraordinary judicial innovation that has safeguarded the democratic character of India against attempts at authoritarian entrenchment.

At the same time, the challenge for contemporary Indian jurisprudence is to calibrate judicial review so that it remains a principled, consistent, and predictable legal tool — one that upholds constitutional values without overstepping into the legitimate domains of the legislature and executive. As Justice H.R. Khanna observed, the Constitution is not just a legal document but a social document, and judicial review must animate its social promise without supplanting democratic choice.

For aspirants of the UPSC Civil Services Examination, mastery of judicial review — its constitutional basis, evolutionary milestones, doctrinal nuances, and governance implications — is indispensable for GS-II, the Essay paper, and the Personality Test. It is a topic where law, history, and political philosophy converge, making it one of the most rewarding areas of UPSC preparation.

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Amit Sir

Amit Singh Rana is a Law educator, guide, and Ph.D. Scholar with over six years of teaching experience in Criminal Law and Constitutional Law. Holding an M.A. and LL.B., he has also written the UPSC Civil Services Mains Examination twice, which gives him a practical and strategic understanding of the examination process.

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